Can an employer dismiss an employee who has a legal adult website and makes no reference to it at work?

 Posted 03-03-2010

Ann Kiernan replies:

In many states it is illegal for an employer to use your private life against you in your job. That’s a violation of your right to privacy. However, if you bring the company into disrepute with your postings, then you have crossed the line and your behavior is not protected.

For some reason I do not understand, there have been a number of cases involving police officers who had off-duty adult websites. Pointing to the open and notorious nature of the employee’s conduct and its effect on the employer’s image and morale, the U.S. Supreme Court upheld San Diego’s firing of a police officer who, under the nickname Codestud3@aol, sold videos of himself performing sex acts while wearing his police uniform. Similarly, in Dible v. City of Chandler, 551 F. 3d 918 (9th Cir. 2008), a police department fired one of its officers, after it learned that he was running a website featuring sexually explicit photographs and videos of his wife. The court pointed out that when an officer’s private life affects the workplace, whether his activities were related to his employment or not, the city could discipline him without violating the officer’s privacy or First Amendment Rights. As the appeals stated, “

[The officer] may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman at the same time.”

Since state laws about privacy vary, you should consult a local employment attorney for the best advice.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:42+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.